New trial ordered in Subway robbery

CHARLESTON, W.Va. -- The state Supreme Court has ordered a new trial for a Greenbrier County man accused of robbing a Subway restaurant at gunpoint in 2009.

In a 4-1 decision released late Thursday afternoon, the justices said that Circuit Judge Joseph Pomponio erred in allowing prosecutors to present evidence about Gary Richard Baker's criminal history.

Baker was sentenced to life in prison on second-degree robbery charges. He was previously convicted of crimes in 2000, and was subject to West Virginia's "three strikes" laws.

In 2009, Baker reportedly walked up to a Subway employee as she was closing the restaurant and pointed what appeared to be a gun at her and forced her to re-enter the store.

Baker ordered the woman to open the store's safe. She couldn't because it was time locked. He instead robbed her of about $100 and fled the scene.

He was later arrested and found to have been carrying a pellet gun that fit the description of the weapon that was used in the robbery.

Baker filed a motion to prevent prosecutors from presenting evidence during trial that he had been convicted of previous crimes. The judge granted the motion.

During the trial, however, prosecutors argued that Baker's lawyer "opened the door" to his client's criminal past while questioning an officer on the stand. The judge agreed with the prosecutors and allowed the state to introduce the previously barred evidence.

Justice Allen Loughry disagreed with the Supreme Court majority. The error, he said, was harmless.

Chief Justice Brent Benjamin joined justices Robin Jean Davis, Menis Ketchum and Margaret Workman in voting for a new trial.